United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) and Supplemental Security Income
(SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding the Administrative Law
Judge's (ALJ) decision is not supported by the record
evidence and is inadequately explained, the court ORDERS that
the decision shall be REVERSED and that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. §
405(g) REMANDING the case for further proceedings consistent
with this decision.
applied for DIB and SSI benefits, alleging disability
beginning November 1, 2012. (R. 14, 184, 192). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He
argues that the ALJ erred in failing to consider the work
questionnaire completed by a former employer, that the
residual functional capacity (RFC) assessed by the ALJ is
unsupported by the record evidence, and that the ALJ erred at
step five of the sequential evaluation process by failing to
resolve conflicts between the RFC assessed and the
representative jobs testified by the vocational expert (VE).
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844
F.2d 748, 750 (10th Cir. 1988)). “If a determination
can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
he has a severe impairment(s), and whether the severity of
his impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's RFC. 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether, in
light of the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also
considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in
the economy. Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In steps one through four
the burden is on Plaintiff to prove a disability that
prevents performance of past relevant work. Blea v.
Barnhart, 466 F.3d 903, 907 (10th Cir. 2006);
accord, Dikeman v. Halter, 245 F.3d 1182,
1184 (10th Cir. 2001); Williams, 844 F.2d at 751
n.2. At step five, the burden shifts to the Commissioner to
show that there are jobs in the economy which are within the
RFC assessed. Id.; Haddock v. Apfel, 196
F.3d 1084, 1088 (10th Cir. 1999).
court finds that remand is necessary because the ALJ's
decision is not supported by the record evidence. The court
notes that when viewing each of the alleged errors separately
and narrowly, it might find a basis in the record evidence to
support the findings of the ALJ. But, that approach ignores
the evidence which detracts from the ALJ's decision, and
ignores that the ALJ failed to discuss or explain why that
particular evidence does not compel a different decision.
Therefore, in this opinion the court takes a different tack
from its usual practice in Social Security disability cases,
and after looking at the ALJ's decision, considers the
evidence which was not discussed in that decision, and
explains why remand is necessary for the Commissioner to
account for that evidence and explain why it does not compel
a different decision in this case.
the ALJ found that Plaintiff has a severe combination of
impairments of bipolar disorder, depression, anxiety,
narcissistic personality, and substance abuse, but that his
impairments do not meet or medically equal any listed
impairment. (R. 16-17). He assessed Plaintiff with the RFC
for a range of work at all exertional levels with certain
nonexertional limitations requiring that he never climb
ladders, ropes, or scaffolds; he avoid concentrated exposure
to unprotected heights and moderate exposure to hazardous
machinery; and that he is limited to unskilled work with
occasional contact with the general public and co-workers,
and may not work in high production rate jobs. (R. 18). In
reaching this RFC assessment, the ALJ summarized the record
evidence, including Plaintiff's allegations, the medical
evidence, and the opinion evidence. Id. at 18-23.
found Plaintiff's allegations of disabling symptoms
resulting from his impairments “not entirely
credible” (R. 20), and Plaintiff does not allege error
in that determination. He afforded weight to Dr.
Brewington's opinion that “mood-stabilizing
medication will help [Plaintiff] focus.” (R. 22). He
afforded little weight to the opinions of Ms. Simpson, the
social worker who treated Plaintiff's mental impairments,
stating that she was not an “acceptable medical source,
” that her limitations were not consistent with
Plaintiff's “ability to perform normal daily
functions, that his condition improves with medication
management, that Plaintiff stated in his treatment notes that
he was “not depressed just stressed over situations in
his life.” (R. 22). He also noted that “Ms.
Simpson has been a long-time proponent of the claimant's
disability application and has actively encouraged the
claimant to pursue disability instead of finding
employment.” Id. The ALJ afforded significant
weight to the opinions of the state agency psychological
consultants because the consultants reviewed the entire
record and are familiar with the agency's evidentiary
requirements. He found the consultant's opinions
consistent with Plaintiff's level of daily activities,
with the fact that Plaintiff is making good progress, and
with Plaintiff's performance on mental status
examinations. Id. He afforded some weight to
Plaintiff's mother's opinion that Plaintiff has some
difficulty maintaining social relationships because the
opinion is consistent with Plaintiff's statements and
with the treatment records. Finally, the ALJ afforded only
little weight to the global assessment of functioning (GAF)
scores in the record ranging from 20 to 55. Id. at
22-23. He discounted the GAF scores because they are not
function-by-function assessments of Plaintiff's mental
abilities, they do not measure Plaintiff's ability to
meet the mental demands of unskilled work, there is no
correlation between GAF scores and the “paragraph
B” criteria of the mental impairment listings.
Id. at 22. He found that GAF scores are not
standardized or designed to predict outcomes, that they are
of little legal significance without explanation or
supporting detail, and are inconsistent with the medical
records showing improvement and a stable mood when Plaintiff
is medication compliant. (R. 22-23). He concluded his RFC
assessment: “In sum, the above residual functional
capacity assessment is supported by the medical evidence of
record, the record as a whole, the State agency findings and
the claimant's testimony.” (R. 23).
found that Plaintiff is unable to perform his past relevant
work as a retail manager because it is skilled work, but
based upon the VE's response to hypothetical questions at
the hearing, he determined that Plaintiff is able to perform
work available in the economy represented by jobs such as a
Finishing Operator, a Shuttle Spotter, and a Spool Winder.
Id. at 23-24. He concluded that Plaintiff has not
been disabled within the meaning of the Act from his alleged
date of disability through the date of the decision, July 17,
2015. Id. at 24 . Consequently, he denied
Plaintiff's applications. Id.
Arguments Regarding Evidence Not ...